WAYNE O'LEARY

What Labor Needs

John L. Lewis, legendary president of the United Mine Workers of
America, once called it a "despotic, damnable, reprehensible, vicious
slave statute" and "the first ugly, savage thrust of fascism in
America." President Harry S. Truman characterized it as "completely
contrary to our national policy of economic freedom" and an attempt
"to shackle American labor and to give overwhelming power to
employers." Millions of organized American workers commonly referred
to it for years as the "slave-labor act."

The law in question was (and is) the Labor Management Relations
Act of 1947, better known as the Taft-Hartley Act after its
Republican sponsors, Senator Robert A. Taft of Ohio and
Representative Fred A. Hartley, Jr. of New Jersey. It was enacted by
the reactionary 80th Congress over the veto of President Truman and
has ever since been the law of the land. There have been attempts to
rescind Taft-Hartley from time to time, most recently in 1965 when
Democrats controlled both houses of Congress and the presidency, but
although a repeal bill passed the House that year, it was
filibustered to death in the Senate.

During the last third of the 20th century, conservative dominance
of the political discussion and the economic agenda made Taft-Hartley
repeal a non-starter; even liberal Democrats gave up on it. Then, in
the 2000 election campaign, a strange thing happened: Revoking the
Taft-Hartley Law was once more part of the national dialogue, albeit
on the fringe, where the Green Party's Ralph Nader made it a minor
cause célèbre.

There is good reason why the issue has reemerged from the shadows
of public policy. Labor has its back against the wall, and
Taft-Hartley remains, as Harry Truman termed it, "an extremist
measure" aimed at immobilizing unions by curbing legitimate strikes
and other job actions, and by making organizing more difficult.
Historically it was a knee-jerk reaction to the National Labor
Relations (or Wagner) Act, a classic New Deal measure pushed through
Congress in 1935 by the great liberal Sen. Robert F. Wagner of New
York. The Wagner Act established the right to organize and bargain
collectively for higher wages and better working conditions; it set
up a permanent National Labor Relations Board (NLRB) charged with
upholding that right, encouraging the formation of independent,
democratic unions, conducting union-certification elections,
enforcing fair labor practices, and arbitrating labor-management
disputes. As organized labor's "Magna Carta," it quickly became a
bête noire of the American right.

The right's answer, carved in legislative stone for half a century
now, was Taft-Hartley, which amended the Wagner Act on behalf of big
business interests. Its key features include the following: the
outlawing of "closed-shop" agreements that make union membership a
precondition to employment, the legalization of state "right-to-work"
laws that allow workers to share in union-won wage-and-benefit
increases without joining and supporting the union (the infamous
Section 14(b)), the prohibition of secondary boycotts, mass
picketing, and jurisdictional or sit-down strikes (key organizing
techniques of the 1930s), the requirement that unions give prior
notification of strike intentions, the exclusion of supervisors and
contractors from eligibility for union membership, and the
establishment of presidential injunction power to halt major strikes
for 80-day "cooling off" periods. The impact of these and other
aspects of the law has been to make life infinitely more difficult
for labor organizers and to weaken the strike as an effective
tactic.

The consensus view is that while not crippling the union movement,
Taft-Hartley broke labor's organizational momentum in the late 1940s,
leaving it in a holding pattern thereafter, forced to fight rearguard
actions rather than taking the offensive. Labor's work was made
hardest in traditional anti-union regions like the South and the
Great Plains, where right-to-work statutes nullifying the union shop
have proliferated. To date, 22 states have adopted such
employer-friendly legislation. Things could have been worse.
Taft-Hartley backers originally aimed at making national unions
irrelevant and industry-wide strikes illegal. For example, one
suggested provision would have strictly limited collective bargaining
to local unions and individual firms; it failed passage by just one
vote in the US Senate.

Nevertheless, the impact of Taft-Hartley has been bad enough,
contributing in no small measure to the steady erosion in union
membership as a percentage of the work force since the 1950s. Perhaps
its worst feature was to change the mission of the NLRB from one of
protecting working people by facilitating unionization to one of
being a supposedly impartial referee between corporate management
(which needs no help) and labor. Specifically, Taft-Hartley empowered
the board to apply the Wagner Act's unfair-labor-practice clause to
labor itself, and to slow and complicate the union-certification
process in the guise of fairness to employers. In practice, this has
meant the use of the NLRB under conservative administrations to
frustrate organizing drives by requiring multiple hearings and
workplace elections, and by postponing the adjudication of worker
grievances, such as the illegal firing of union supporters.

Ralph Nader, who became labor's unlikely (and unappreciated)
tribune in the last election, holds Taft-Hartley directly responsible
for the plight of today's unions through its establishing of the
"right" of companies to actively oppose union organizing efforts
using all the tools at the disposal of the modern corporation. Rather
than maintaining a traditional neutral stance while awaiting the
decision of its employees on whether to accept formal representation,
he says, present-day management can use a wide array of subtle and
not-so-subtle techniques to persuade, cajole, intimidate, and
threaten workers, or simply to drag out negotiations to the point of
discouragement. Taft-Hartley, Nader argues in calling for its repeal,
codified the principle that "it was OK to bust unions and deny
workers their right to collectively bargain"; it exists, in his view,
as a basic infringement of human rights.

It's an apt evaluation. Whatever the arguments were in the 1940s
for the Taft-Hartley Act, they no longer apply -- if, indeed, they
ever did. In the new era of corporate monoliths and economic
globalization, organized labor cannot defend the interests of
American workers without a public-policy assist in the form of a
basic revision in fundamental labor law. The labor-management playing
field, which was reasonably level at the end of World War II, is now
tilted heavily in the direction of the corporate sector, and
stagnating American wages, as well as declining fringe benefits, show
it. In a nation as rich as ours, that's a disgrace, and it's time to
redress the balance.